In brief

The case of Petty & Ors v Brisbane City Council & Anor [2018] QPEC 2 concerned a submitter appeal against the decision of Brisbane City Council (Council) to approve a development application that sought to reconfigure four existing lots into two, relocate a pre-1947 traditional building and develop a multi-unit three storey development in a location that was dominated by large pre-1947 single unit character dwellings.

The proposal to develop a three storey multi-unit complex was the subject of the dispute. The Appellants' primary submission was that the proposed development conflicted with the Brisbane City Plan 2014 (City Plan) to the extent that it would effectively result in an impermissible built form due to its "height, bulk, scale, density and size" (see [11]).

The starting point for the Court was to affirm (see [17]-[22]) the general principles of statutory construction as instructive to its construction of planning schemes. In particular, the Court pointed to the principle in Newing & Ors v Silcock & Ors [2010] QPEC 49 [2010] QPELR 692 which relevantly provides that planning schemes "should be construed broadly, rather than pedantically or narrowly and with a reasonable, practical approach" (see [19]). Similarly, the Court referred to the often cited principle in Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 in which the Court held as follows:
"[t]he fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes…" (see [21]).
The Court ultimately found in favour of the Appellants and held that the planning grounds submitted by the Respondent and the Co-Respondent, on balance, were not sufficient to justify approval of the development application. The Court addressed the following issues:
  1. whether the proposed development conflicted with the City Plan to the extent that it gave rise to adverse impacts in relation to the height, bulk, scale and size of the development, unacceptable heritage and character, sub-tropical design outcomes, landscaping and amenity, setback and separation; and
  2. whether the proposed development was contrary to the reasonable expectations of the residents.

The Court found that the proposed building height was in stark and clear conflict with the City Plan

In their submissions the Appellants raised two significant conflicts with the City Plan. The first was the height of the proposed multi-unit building because it exceeded the 9.5 metre restriction. The second was that the proposed development exceeded two storeys and was not within walking distance of a transport node as was required by the Low medium density residential zone code under the City Plan.

The Court did not consider the second identified conflict as fatal and held that it would be impracticable to find the development application would fail on the basis that the three storey development was not within close proximity to transport. To arrive at such a conclusion would be to interpret the City Plan in an "inflexible way" and would therefore be "contrary to the underlying philosophy of a performance based planning scheme" (see [101]).

In terms of impact to the streetscape the Appellants' town planner contended that the difference between a two storey and three storey development would be noticeable and the 9.5 metre limit was "not an invitation to squeeze in another storey" (see [100]).

The Court held that while elements of the roof exceeded 9.5 metres the exceedance was of little significance and could not reasonably create a genuine conflict. It was the lift structure that exceeded the height criteria by 2.3 metres and the fire stairs that elevated the roof structure to 10.8 metres that created an inconsistency with the character of the local area and ultimately placed the proposed development in material conflict with the City Plan. Further, the proposed landscaping and existing vegetation would have little impact in ameliorating the height intrusion.

The Court found that the proposed development provided a sensitive transition to the built environment and was presented in a well-considered manner

The Court preferred the evidence of the Co-Respondent's architect and agreed that the overall design of the proposed multi-unit dwelling was sympathetic to the built form environment. For example, the proposed building design utilised architectural devices including "steps in its form, both horizontally and vertically", the inclusion of generous eaves to shade the walls and "prominent verandah elements with … traditional lightweight detailing" (see [78]).

The Court was sympathetic to the Co-Respondent's position because, but for the issue of height, the Co-Respondent had "produced an attractive unit development which would in many respects sit comfortably within its location" (see [110]).

The Court found that the comparison between the proposed roof design and the roof pitch typically associated with a pre-1947 dwelling revealed a clear conflict
The Traditional character design overlay code required that "development provides roof forms which complement traditional roof styles of dwelling houses constructed in 1946 or earlier that are located nearby in the street in terms of roof pitch and proportion" (see [60]). The Court emphasised that it was the requirement that roof designs complement, not replicate pre-1947 roof designs (see [62]).

While the Court acknowledged that care had been taken to assimilate the proposed roof design with the pre-1947 character, it was clear that the main design goal was to keep the roof within the 9.5 metre height restriction and so could not be said to "complement the traditional roof forms" (see [64]).

The Court found that any identified conflicts in respect of sub-tropical design, landscaping and amenity, setback and separation were minor and could not warrant refusal

The Appellants submitted that the nature and extent of the deep planting and the extent of the site coverage gave rise to unacceptable open space and amenity impacts. The City Plan required that deep planting, among other things, provide shade and informal recreation space and be "easily accessible for building occupants" (see [42]). Because of the existing proposed retaining wall the "functionality" required could not be met (see [44]).

The site coverage was expressed to be around 53% and so exceeded the 45% maximum site coverage criteria under the City Plan. Also, it was submitted by the Appellants that set back and separation created a conflict because the proposal presented a very wide rear façade and would appear very close to the rear adjoining houses.

The Court was not persuaded that the identified conflicts were substantial and held that "[t]hat an acceptable outcome is not met is not necessarily fatal in a performance based planning scheme" (see [49]).

The Court held that the concept of reasonable expectations of the residents, having regard to the City Plan, would be a relevant consideration

The Appellants submitted that their reasonable expectations were informed by the provisions of the City Plan and the previous decision of the Court in Platinum Design Architects v Brisbane City Council [2016] QPEC 58 "given the similar treatment of the subject land and the parcel considered in that appeal" (see [32]).

The proposed development was within the Low medium density residential zone which relevantly contemplated three storey developments in certain circumstances. The Court therefore concluded in the appropriate circumstances, the possibility of a three storey development would have had to be expected.

The Court concluded that population growth could be accommodated in a compliant two storey multi-unit development and the submitted planning grounds were not sufficient to warrant approval

The Co-Respondent's economist contended that the proposed development reinforced the compact form of settlement in a growth area resulting in efficient use of existing infrastructure and represented an opportunity to contribute to the planning objectives of the South East Queensland Regional Plan 2009, in particular by "accommodating significant population growth in infill development" (see [113]).

The Court was not persuaded by the totality of evidence given by the Co-Respondent's economist, especially when cross examined about the level of demand for multi-unit development in the subject area. Relevantly, the Court agreed with counsel for the Appellants that the evidence of the Co-Respondent's economist indicated that there was in fact a 'material excess of supply' in the area of the proposed development (see [117]).

Finally, the Court affirmed that it is not the function of the Court "to substitute planning strategies" which have been adopted by a planning authority and therefore it could not ignore the clear conflict with the City Plan concerning height (see [133]).

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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